(represented by Cathy Maguire B.L. instructed by Gallagher Shatter Solicitors)
The Irish Prison Service
(represented by David Keane B.L. instructed by the Chief State Solicitor's Office)
1.1 The case concerns a claim by Ms. Bernadette Mc Hugh that the Irish Prison Service discriminated against her on the gender, marital status and family status grounds in terms of section 6(2)(a), (b) and (c) of the Employment Equality Act 1998 in relation to promotion and training.
2.1 The complainant claims that she was discriminated against in the selection process for promotion to Clerk 2 in April 2002 and an Assistant Governor position in May 2003. She also claims that she was discriminated against in that she was not considered for appointment to an acting Clerk I position in July 2002 or considered for the payment of the allowance in respect of the position. She also claims that she was discriminated against in relation to training in October 2003. The respondent denies the claim of discrimination and submits that the complainant's complaint was referred outside the statutory time limit.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 14 April 2004. On 9 November 2006, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 14 April 2004 and from the respondent on 28 January 2007. A joint hearing of the claim was held on 28 June 2007. Information requested at the hearing was provided on 26 July 2007.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant submits that she participated in a competition for promotion to the grade of Clerk 1 in the Prison Service in February 2002. She submits that at the time, she was Clerk 2 Prison Officer. In April 2002, she was listed at number 17 on the panel of successful candidates. The panel was for existing vacancies and vacancies that might arise during the 18 months from April 2002. She submits that no arrangements were made by her employer for the possibility of her being promoted to any of the said vacancies taking into account that she was job sharing because of her gender, marital status and family status. She submits that on 16 October 2003, the Irish Prison Service made it clear to her job-sharing colleague on the panel that she could not accept an offer of promotion on a job sharing basis and that it must be taken up full time. The complainant submits that Circular 3/84 discriminates against her as it provides that an offer of promotion will normally be conditional upon the Officer concerned undertaking to perform the duties of the higher grade on a full time basis.
3.2 The complainant submits that as part of the overall assessment for promotion to Clerk 1, she was assessed by Governor D prior to interview. The assessment was signed by Governor L. She appealed the assessment as she believed it to be unfair since many of her colleagues got significantly better assessments. After consideration, Governor L agreed to upgrade her assessment in line with her peers which rated her as "well qualified" and the Governor's rating remained at "satisfied". She submits that after the panel was published, it came to her attention that some of her colleagues were rated as "exceptionally well qualified" and the Governor's rating was stated to be "very satisfied". She submits that the ratings given significantly disadvantaged her in terms of her placing on the panel. She submits that had her assessment been better or at least in line with her peers, she estimates that this would have moved her up six or seven places on the panel. She believes that her job sharing status was adversely reflected in her overall assessment.
3.3 The complainant submits that when a Clerk 2 retired in July 2002, a male Clerk 2 from the pay office was trained in to take over his duties and she was not offered the opportunity to be trained in. The Clerk 2 who retired was in receipt of an Acting Clerk 1 allowance and she believes that she was not offered the opportunity to take over his duties or offered the allowance because she was a job sharer.
3.4 The complainant submits that in late 2003, a competition was advertised for Assistant Governor for which she applied. She submits that she went for interview but was unsuccessful and believes that her job sharing status adversely affected her chances of promotion to the post. She submits that in September/ October 2003, she was not sent for training on the HRMS Computer System and four male colleagues were. She submits that she believes that the decision not to send her for training was due to her job sharing status.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The complainant's complaint is based on a competition for promotion to the grade of Clerk 1 which was held in 2002. 17 officers were placed on a panel in order of merit and the complainant was placed at number 17. The panel expired on 17 October 2003. By that time promotions had been offered up to and including number 15 on the panel and the complainant's position was never reached. The complainant was not therefore offered a promotion, job-sharing or otherwise and in any event could not be offered a promotion ahead of people placed in front of her on the panel.
4.2 Ms. H who was placed at number 13 on the panel was offered promotion to a full-time position at Clerk 1. She indicated that she would be willing to accept promotion in a job sharing capacity with the complainant but this could not be facilitated because the complainant's position on the panel was not reached.
4.3 The complainant also makes reference to being interviewed on 8 May 2003. The interview was in respect of a promotion competition to the grade of Assistant Governor. The complainant was not placed on the panel.
4.4 The complainant's complaint was submitted well outside the time limit and there are no grounds for an extension in the case. As the complainant was interviewed for Clerk 1 on 15 April 2002 and not reached on the panel, 15 April is the only date that can be considered relevant in deciding the appropriate date from which the time limits to submit a complaint should apply. It is clear that the respondent could not have discriminated against the complainant as she was not reached on the panel and she was not therefore offered a promotion. Even if the date of 8 May 2003 is taken into account, the complaint is well outside the time limit for submitting a claim.
4.5 The complainant was offered promotion in a later competition to the grade of Clerk 1 in September 2006. She requested to job-share with an officer who was placed behind her on the panel. In those instances, the second officer's position on the panel was reached and her request to job-share could therefore be granted.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against her on the gender, marital status and family status grounds in relation to promotion and training. I will therefore consider whether the respondent directly discriminated against the complainant on these grounds in terms of section 6(2)(a), (b) and (c) of the Employment Equality Act 1998 in contravention of section 8 of the Act. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
Direct discrimination on the age ground
5.2 Section 6(1) of the Employment Equality Act, 1998 provides that:
"Discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated."
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(a) that one is a woman and the other is a man (in this Act referred to as "the gender ground"),
(b) that they are of different marital status (in this Act referred to as "the marital status ground"),
(c) that one has family status and the other does not (in this Act referred to as "the family status ground"),
5.3 The complainant claims that she was discriminated against on a number of occasions. She claims that she was discriminated against when she was not offered the post of Clerk 1 on a job sharing basis. The complainant was placed at number 17 on the panel for the post of Clerk I in April 2002. The panel was to run for a period of eighteen months, however, the complainant's position was not reached on the panel. The complainant also claims that she did not receive a better assessment in respect of that competition due to her job sharing status. The respondent clarified that the panel expired on 17 October 2003. By that time, promotions had been offered up to and including number 15 on the panel, however, the complainant's position was never reached. The respondent submits that the complainant was never therefore offered a promotion, job-sharing or otherwise and she could not in any case be offered a promotion ahead of people on the panel.
5.4 The complainant also claims that she was discriminated against in July 2002 when a male Clerk II was trained on a colleague's job which carried an acting up allowance. I note that the complainant's male colleague applied for an acting up allowance on 18 July 2002 and on 22 August 2002 withdrew his application for the allowance. The complainant also refers to an Assistant Governor competition in late 2003. By letter dated 5 December 2006, she clarified that the complainant's interview in respect of the Assistant Governor competition was held on 8 May 2003. The complainant also makes a complaint of discrimination in relation to male colleagues being afforded training which she was not afforded in October 2003. The respondent by letter dated 3 July 2007 clarified that the training on Human Resource Management System in respect of which the complainant was not afforded the opportunity took place on 7 and 8 October 2003. The complainant's complaint was referred to the Director of Equality Investigations on 14 April 2004. The issue of time limits was raised with the complainant and by letter dated 5 December 2006, she submitted that "the application was made within the statutory time limit."
5.5 Section 77(5) of the Employment Equality Act, 1998 provides that:
......... a claim in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
5.6 A similar issue in relation to time limits and a series of alleged discriminatory acts was considered by the Labour Court in Department of Health & Children v. John Gillen . In that case, the complainant complained that after he had reached the age of fifty, he was no longer considered by the appellant as being suitable for promotion purely on age grounds. He claimed that on each of two occasions when he competed, he was rejected on the grounds that he was over 50 years of age. In that case, the Court held:
"In the view of the Court, these two acts can be considered as separate manifestations of the same disposition to discriminate. If the last alleged act of discrimination is within the time period specified in the Act, the Court may take into consideration previous occasions in which the complainant was allegedly discriminated against on the same ground. The Court, therefore, takes the view that both complaints are validly before the Court."
I consider that the various allegations may be considered to be separate manifestations of the same disposition to discriminate, however, for the complaint to have been referred within the statutory time limit, the last alleged incident of discrimination must have occurred no earlier than 15 October 2003. The last incident referred to by the complainant occurred on 8 and 9 October 2003 and no application to extend time having been made by the complainant, I find that the complaint was not referred in time and I have no jurisdiction to investigate the claim.
Locus Standi in respect of incident of alleged discrimination on 16 October 2003 and Circular 3/84
5.7 The complainant stated on the referral form that the date of the most recent occurrence of the alleged discriminatory act was 16 October 2003. She submitted that on that date her job sharing Clerk II partner was told that she could not accept an offer of promotion to Clerk I on a job sharing basis and that she must take up the post full time. As the respondent did not make any representations to the complainant on that date, she cannot refer a complaint in relation to that particular date. The complainant also claims that Circular 3/84 discriminates against her because it provides that an offer of promotion will normally be conditional upon the Officer concerned undertaking to perform the duties of the higher grade on a full time basis. The complainant has not shown how that Circular was applied to her in a discriminatory manner and cannot submit that she was discriminated against on an ongoing basis by the operation of that Circular.
Remuneration claim in respect of the granting of an Acting Clerk I allowance in January 2006
5.8 It appears that the issue of an Acting Clerk I allowance for one of the complainant's male colleagues who withdrew his application for the allowance in August 2002 (referred to at paragraph 5.4 above) became an issue again in September 2005 when the Governor raised the matter. Additionally, the person in question made an application for the retrospective payment of the allowance in December 2005 and in January 2006, he was retrospectively granted an Acting Clerk I allowance for the period 1 October 2004 to 4 September 2005. Any remuneration claim in respect of the subsequent application or granting of the allowance could not have been the subject of the complainant's claim which was referred to the Tribunal on 14 April 2004 and no claim has at this stage been made in respect of the matter.
6.1 On the basis of the foregoing, I find that the complaint was not referred within the statutory time limit and I have no jurisdiction to investigate the claim.
9 August 2007